Any chance your business has a policy prohibiting employees from discussing their salaries and benefits? Or perhaps you have a personnel file policy stating that all information, including salary, contained in personnel files is confidential? You also may have a policy that prohibits employees from soliciting or posting on bulletin boards. And you likely have a policy giving employees direction on how they may and may not discuss the workplace in their social media activity.
Because many employers review their handbooks infrequently, obtain their handbooks from internet sources that may not be current or have not updated their policies to account for changes in social media habits, it is not unusual to find these policies in place. However, all of the ones mentioned above raise red flags for the National Labor Relations Board (NLRB).
You might be thinking, We are not a union shop; why does the NLRB matter to us? The NLRB is tasked with ensuring that no employer violates an employee’s right to "engage in concerted activities." Employees “engage in concerted activities” when their conduct could lead to a decision to unionize. This fairly broad definition includes discussing the terms of the workplace, such as salary and satisfaction with supervisors.
The NLRB’s reach is currently quite long. Employers should check their policies to assure that no policies chill discussion among employees regarding their work conditions. Employers should also assure that supervisors are trained on what these policies mean.
As a practical matter, it is acceptable to have policies that protect employee privacy, such as a policy limiting access to personnel files. But employers should not categorically classify salary information as confidential. And while employers may reasonably restrict solicitation in the workplace to protect employees from becoming objects of financial or other personally intrusive pursuits, employers should not categorically prohibit solicitation. The NLRB likely would construe this as an effort to prevent union organizing.
What may be most on your mind are your social media standards. These policies should be carefully drafted and account for real concerns in the employer’s workplace. For example, employees may be prohibited from violating central employer policies, such as professionalism, anti-violence and anti-harassment, in their personal social media conduct. In contrast, they should not be prohibited from identifying their employer and discussing their views of the workplace on social media. As an example, the NLRB considers “liking” statements by other employees on Facebook a form of discussion about the workplace.
Employers should keep an eye on the NLRB. Its guidance is not always affirmed by the courts, but it has worked actively for several years to increase its role in shaping employer policies. Stay current, don’t rely on policies that have not been personalized to your workplace and avoid inappropriate control over employee communications. These steps will not address every concern the NLRB directs toward employers, but they are a strong dose of prevention.
Cece Nunn - Jan 30, 2023
Miriah Hamrick - Jan 30, 2023
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